Pant (Migration)

[2022] AATA 4950

Pant (Migration) [2022] AATA 4950 (25 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankit Pant

REPRESENTATIVE:  Ms Hema Chemjong (MARN: 1796307)

CASE NUMBER:  2116503

HOME AFFAIRS REFERENCE(S):          BCC2021/1159237

MEMBER:Vanessa Plain

DATE:25 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl 500.212 of Schedule 2 to the Regulations

Statement made on 25 July 2022 at 5:38pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of time onshore – change of course direction – level of study – academic progress – value of the course – awareness of the job market in Nepal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 28 May 2021. The delegate refused to grant the visa on 26 October 2021.

2. The delegate made the decision, in whole or substantial part, on the basis that evidence of:

   ·Completion of secondary school in the applicant’s home country

   ·Ownership of assets in the applicant’s home country

   ·Knowledge of course contents and education provider

   ·Career intentions upon return to the applicant’s home country

   ·Information relating to previous study in Australia

   ·A GTE statement

   ·An explanation as to how the Australian qualification would benefit their future remuneration level significantly enough to outweigh the significant cost and commitment the courses would require while in Australia

   was not provided as required to satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a subclass 500 student visa.

3. The applicant appeared before the Tribunal on 25 July 2022 to give evidence and present arguments. 

4. The delegate’s decision record reveals that the applicant is a Nepalese man who first arrived in Australia on 220 October 2018 utilizing an initial Student Visa.  The delegate noted that the applicant did not submit a GTE statement in support of his application.  There was insufficient material before the delegate for the delegate to be satisfied that the applicant had addressed the Direction 69 criteria.  The delegate was concerned that the applicant’s primary motivation in applying for a Student visa was to secure ongoing residence in Australia, rather than due to a genuine desire to undertake the course of study.  For these reasons, the delegate determined that the applicant was not a genuine entrant

5. In advance of the hearing the Tribunal received the following documents directed to addressing the deficiencies set out by the delegate in the decision record, as follows:

   ·Letter of enrolment for a Bachelor of Business 

   ·GTE statement of the applicant

   ·A Response to Request for Student Visa Information

   ·A suite of academic documents evidencing course attendance, course completion and grade attainment in Australia and overseas

   ·Bank statements

   ·Tax returns

   ·Family business plan

   ·The delegate’s decision record

6. The Tribunal has considered the documents produced by the applicant. 

7. The applicant stated at the hearing that he started studying cooking courses upon his initial arrival into Australia, but due to the pandemic, he did not see a future career wise in hospitality.  He lost his job.  So he decided to undertake a higher level course which he believes will be more beneficial to him in the job market in his home country. 

8. The Tribunal finds that the applicant is not utilising the student migration program to obtain long term residency.  The applicant has been onshore for a short time and although the Tribunal notes that the applicant has changed his course direction, it notes that he is now undertaking a higher level of study and progressing well academically.  At the time of this decision the documentation before the Tribunal clearly establishes that the applicant has a thorough understanding of his course contents and is obtaining good grades.  This is the applicant’s second student visa application and the documents produced demonstrate that he has a thorough understanding of his circumstances in Australia, has researched education providers in Australia, has reasonable financial ties to his home country, has strong familial ties to his home country and is aware of his living expenses and visa conditions in Australia.   The Tribunal places weights on these factors as being indicative of the applicant being a genuine student who intends genuinely to stay in Australia temporarily for the purposes of study. 

9. The Tribunal further finds that the applicant has in his GTE statement reasonably demonstrated the value of the course to his future to an extent that outweighs the current cost of completing the course, by demonstrating an awareness of the job market in Nepal and the value of a Bachelor of Business degree in that marketplace.  The Tribunal is further satisfied that there is no information before the Tribunal to suggest that the applicant has an adverse immigration history in Australia.     

10. In light of the new evidence received and the findings set out above, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

    decision

11. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    ·cl 500.212 of Schedule 2 to the Regulations

    Vanessa Plain
    Member